The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.
On June 19, 2008, the New York Presbyterian Hospital Weill Cornell Medical Center (the "Hospital") terminated Dominique Bonfiglio's employment. On June 30, 2008, Bonfiglio filed a verified complaint with the New York State Division of Human Rights (the "DHR"). Her complaint charged the Hospital with employment discrimination, namely, wrongful termination, based on race and color in violation of New York law.*fn1 The DHR determined that there was "no probable cause" the believe that Bonfiglio's termination constituted unlawful discrimination and dismissed the case.*fn2
Bonfiglio subsequently brought this action alleging that the Hospital violated Title VII of the Civil Rights Act of 1964 ("Title VII")*fn3 and the New York State Human Rights Law ("NYSHRL").*fn4 The Hospital filed a motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). The Hospital also opposes Bonfiglio's oral request to amend her Complaint to add a claim under the New York City Human Rights Law ("NYCHRL")*fn5 and an individual defendant. Because Bonfiglio's termination claim has already been decided by the DHR, this Court lacks subject matter jurisdiction over that claim. Because the proposed NYCHRL claim is "based on the same underlying conduct" as the NYSHRL claim, it would also be dismissed for lack of subject matter jurisdiction.*fn6 Furthermore, there is no individual liability under Title VII, which is the only remaining claim. Leave to amend is therefore denied.
Bonfiglio had been working at the Hospital continuously from July 2007, until she was terminated in June 2008.*fn7 Bonfiglio, who is white, alleges that she heard her immediate supervisor, Carmen Zuluaga, an Hispanic woman, make "racist" remarks about Caucasians on two occasions.*fn8 Her co-workers informed her of a third occasion.*fn9 Bonfiglio alleges that she was subjected to other "harassing" treatment such as discriminatory enforcement of break policies*fn10 and an unwarranted negative performance evaluation.*fn11
On June 3, 2008, one of Bonfiglio's supervisors sent her a memo
informing her that she had been late to work over twenty times since
January 2008. That memo warned her that any future tardiness might
result in disciplinary action including termination.*fn12
On June 13, 2008, Bonfiglio was twenty minutes late
to work and was therefore terminated, effective June 19.*fn13
On June 25, 2010, Bonfiglio sought relief in this Court, alleging
violations of Title VII and the NYSHRL.*fn14 The
alleged discriminatory acts were "termination," "retaliation," and
"racism and hostile work environment."*fn15 At a
conference held on March 10, 2011, Bonfiglio, who appeared pro se but
has since retained counsel, orally requested leave to amend her
Complaint to add Zuluaga as an individual defendant.*fn16
She also sought leave to add claims under the NYCHRL.
Bonfiglio now seeks to add only a retaliation claim under the NYCHRL.
On March 17, 2011, the Hospital filed a motion to dismiss the state
law claims for lack of subject matter jurisdiction and requested an
Order denying Bonfiglio leave to amend her complaint.
A. Lack of Subject Matter Jurisdiction under Rule 12(b)(1)
"A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it."*fn17 The plaintiff bears the burden of proving the existence of subject matter jurisdiction by a preponderance of the evidence.*fn18 "When considering a motion to dismiss pursuant to Rule 12(b)(1), the court must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff."*fn19 In resolving a motion to dismiss under Rule 12(b)(1), a court is not limited to the face of the complaint and may consider evidence outside the pleadings, including affidavits submitted by the parties.*fn20
Administrative and judicial remedies "are intended to be mutually exclusive. Once a complainant elects the administrative forum by filing a complaint with the [DHR], that becomes the sole avenue of relief, and subsequent judicial action on the same complaint is generally barred."*fn21 Under the NYSHRL, a "person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction . . . unless such a person had filed a complaint [with the DHR]."*fn22 Under the NYCHRL, a discrimination plaintiff "shall have a cause of action in any court of competent jurisdiction . . . unless such person has filed a complaint with the City Commission on Human Rights or with the State Division of Human Rights with respect to such alleged unlawful discriminatory practice."*fn23 Although the language is nearly identical, the City law must be construed "independently from similar or identical provisions of New York state or federal statutes."*fn24 ...